95 F1d 427

Untler Bankruptcy Ad 1898, § 67, cI. f, providing that "all levies, ments attachments or other liens obtained tm'oug-h legal proceedmgs a perSQn who is insolvent, at any time within foUl' months prior to the filing of a petition in bankruptcy against him, shall be deemed nul' and void in case he is adjudged a bankrupt," but that "nothing herein eontained shall have the effect to destroy or Impair the title obtained by sueh levy, judgment, attachment, or other lien, of a bona fide for vBhw" where within four months before the filing of a petitIOn III an insolvent jUdgment debtor" an execution has been issued Bnd levied, and sale made, the title of one purchasing at such sale in good faith and without notice will not be 'affected by the subsequent l,ankl'nptey; but the proceeds of the sale, remaining in the sheriff's hands, do not helong to the jndgment creditor, but to the estate of the bankrupt, anti lllnst lIe paid over to the trustee when appointed.

mtOWN, District Judge. Tbe petition to bave Raymond W. Kenney adjudged a bankrupt was filed on April 13, ;1.899, the act of bankruptcJ' alleged being, that be had suffered a judgment to be l'eeovered against him by one Olark in the preceding month of March, and had allowed his chattel property to be sold under execution 1hereunder. answer and hearing, bankruptcy was adjudged. The sberiff having collected the money upon the execution sale made prior to tbe filing of the petition, a stay of proceedings was obtained against the payment of the moneys upon the execution by the sberiff, and this stay is now asked to be continued. The stay is opposed by the judgment creditor, ""ho urges that the proceeds are not within the jurisdietion of tbis court and that they belong to the judgment creditor, citing the cases of In re Easley, 93 Fed. 419; Henkelman v. Smith, 42 Md. 164, 12 N. B. R. 121; and other cases. I cannot sustain the objection to the stay. The judgment and execution having been obtained and issued but a little more than a month before the filing of the petition, the case falls within the express provisions of section 67, cl. f, of the present bankruptcy statute, wbich declares, "that all levies, judgments, or other liens obtained through legal proceedings" in such case "shall be deemed null and void in case he is adjudged a bankrupt." The latter part of this section provides "that notbing herein contained shall have the effect to destroy or impair the title obtained by such levy of the bona fide purchaser for value." This proviso leaves no doubt of the intent of this section. A "title" could only be "obtained by a levy" tbrough a sale under tbe levy; and the proviso means that the bona fide purchaser's title shall not be impaired by the fact that as against all other persons the levy is to be deemed "null and void," in case the defendant is adjudged a bankrupt. The proviso is for

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the protection of the bona fide purchaser only; and it clearly shows that the intent of the section is to reach out beyond the levy itself, and to make null and void' all that is done under the levy, except as to the title .of the bonafide purchaser. So far as concerns the judgment creditor, the lien and the levy being null and void, he can take no advantage from it, nor acquire any right to the proceeds. A valid title passing presumptively to the purchaser at the sheriff's sale, the proceeds stand in the sheriff's hands as a mere substitute for the goods, to' which the judgment creditor gets no right, but which belong' to bankrupt's estate, as the goods themselves would have belonged ,but .lor the sale. to a bona fide purchaser. The provisions of the ad of 1867 are so different from those of the present statute on this point as not to be applicable. The stay is cOlltinued, and an ()rder may be taken directing the payment of the moneys to the trustee when appointed.

Bankruptcy Act 1898, § 5, d. h, providing that, "in the event of one or more butnQt all Of the members of a partnership being adjudged bankrupt, the partnership. property shall not be administered In unless by consent of the partner or partners not adjudged bankrupt," does not apply to a case where the infancy of the partner not adjudged bankrupt was the only ground for dl&illisslng the petition as to him.

In Bankruptcy. On report of referee in bankruptcy on a contested petition for adjudication in involuntary bankruptcy. Greene & Davenport, for petitioning creditors. Winn & Griswold, for bankrupts. LO'VELL, District Judge. The allegations in the petition haJfe established, and upon this point I find no reason to differ from the report of the referee, to whom the case was referred, under rule 12, to ascertain and report the facts. The only difficulty is created by the fact riot stated in the petition, but properly set up in the answer, and nofdisputed, that one of the respondents, a member of the respondent firm, is a minor. Upon the Whole, the authorities make it pretty clear that an infant canllot generally be made an involuntarybankrupt, and sound reasoning leads to the same result. In re Derby, 6 Ben. 232, Fed. Cas. No. 3,815; Farris v. Richardson, 6 Allen, 118; In re Brice, 93 Fed. 942. Under these circumstances, air adjudication should be made against the partner who is of age, and agahist the firrii. As to tM minor partner, the petition should be
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